RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2019-04920

xxxxxxxxxxxxx	COUNSEL:  NONE
	
	HEARING REQUESTED:  NO

APPLICANT’S REQUEST

Her retired pay be adjusted to account for public service she performed as a retiree under the Temporary Early Retirement Authority (TERA) program.

APPLICANT’S CONTENTIONS

When she submitted DD Form 2676, Validation of Public or Community Service Employment, with proof of employment in a public school and her DD Form 214, Certificate of Release or Discharge from Active Duty, she was told it was too late to have her retire pay recomputed.  She was supposed to have provided the DD Form 2676 and DD Form 214 the first day she was retired, on 2 Dec 94.  However, she was never informed of these procedures.  She worked as a substitute teacher since Oct 94, and attended university from May 95 – May 97 to complete her certifications.  She was employed as a teacher from Sep 97 through May 10.

She planned to start the process early to ensure it would be in place by her 62nd birthday.  When she was told it was too late to re-compute her retired pay, she was informed to start the correction of military records process.  She has always done what was expected, and it was the Consolidated Base Personnel Office’s error not making her aware that she was supposed to file these papers the day she became a civilian.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a retired Air Force technical sergeant (E-6).

On 21 Apr 94, according to AF Form 1160, Military Retirement Actions, Section IV, Remarks, the applicant acknowledged “I understand that I must register on the Public and Community Service Registry at the FSC [Family Support Center] and that my retirement cannot be consummated until my registration has been confirmed.”

On 30 Nov 94, according to DD Form 214, the applicant was released from active duty for the purpose of retirement.  Item 18 (Remarks) states “Member is retiring under Section 4403 of the FY93 National Defense Authorization Act (PL 102-484) and May Qualify for a Recomputation of Retired Pay at Age 62 Pursuant to Section 4464 of the Same Law.”  She was credited with 16 years, 6 months, and 29 days of active service.  

On 22 Jul 19, according to DD Form 2676, the applicant certified her employment with XXX Public Schools, from 1 Sep 97 – 24 May 10.

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisory at Exhibit C.

AIR FORCE EVALUATION

AFPC/DP2SSR recommends denying the application.  Congress enacted the TERA program pursuant to the FY93 National Defense Authorization Act (NDAA), which permitted selected military members to retire early.  Section 4464 of the FY93 NDAA allowed eligible members retired under TERA to perform public and community service (PACS) following retirement and receive credit for this service to be used to re-compute military retired pay, and where applicable, the Survivor Benefit Plan base amount when the retired member attains or would have attained 62 years of age.

The FY93 NDAA required members retiring under TERA to register in advance of the projected retirement date on the PACS Registry maintained under Title 10 United States Code, Section 1143a.  The law allows no provision to retroactively register for employment in PACS organizations.

Program management was established and announced to the Services through the Assistant Secretary of Defense (ASD) Memorandum, Active Duty Early Retirement Policy Guidance, dated 12 Mar 93, and the ASD Memorandum, Implementing Procedures for Temporary Early Retirement Authority (TERA) Programs, dated 22 Apr 93.  The Air Force also provided specific instructions to the field through a Military Personnel Flight Letter 93-024, Voluntary Early Retirement Program, dated 9 April 93.  The Department of Defense (DoD) also provided specific information on obtaining PACS credit through DoD Instruction 1340.19, Certification of Public and Community Service Employment of Military Retirees, dated 17 Nov 93.

Members were required to turn in proof of PACS to the Defense Manpower Data Center (DMDC) team no later than one year after they would have attained 20 years Total Active Federal Military Service  had they been continuously on active duty.  The applicant retired on 1 Dec 94 and was credited with 16 years, 6 months, and 29 days of active service; therefore, any creditable service must have been completed prior to 2 May 98.  Based on the reporting instructions established by the DMDC, the applicant was required to submit record of the creditable service within a year of that point (or 2 May 99). The DMDC does not have any record that the applicant applied for PACS.  Had the applicant properly registered within the allotted time period and provided the required documentation, she would have been eligible to receive credit for the time served under the PACS program. 

The complete advisory opinion is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 21 May 20 for comment (Exhibit D), and the applicant replied on 5 Jun 20.  In her response, she reiterates that she was never briefed on the procedures written in the advisory.  Her DD Form 214, indicates that on her 62nd birthday, her retirement pay could be re-computed.  She retired overseas and flew to the United States to complete her final out-processing and does not recall being briefed on these procedures.  Had she known, she would have turned in the proof for the re-computation.  She is saddened that she must suffer because someone did not do their job.

The applicant’s complete response is at Exhibit E. 

FINDINGS AND CONCLUSION

1.  The application was timely filed.

2.  The applicant exhausted all available non-judicial relief before applying to the Board.

3. After reviewing all Exhibits, the Board concludes the applicant is not the victim of an error or injustice.  The Board concurs with the rationale and recommendation of AFPC/DP2SSR and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  The applicant’s response to the advisory opinion is duly noted; however, although she alleges she was never briefed on the procedures written in the advisory opinion, the evidence indicates that she acknowledged, via AF Form 1160, that she had to register for PACS.  Based upon the presumption of regularity in the conduct of governmental affairs, and without substantial evidence to the contrary, the Board must assume the applicant was properly briefed about the requirements of the program and as noted above, the applicant did not turn in proof of PACS to the DMDC within the allotted time frame.  Therefore, the Board recommends against correcting the applicant’s records.

RECOMMENDATION

The Board recommends informing the applicant the evidence did not demonstrate material error or injustice, and the Board will reconsider the application only upon receipt of relevant evidence not already presented.

CERTIFICATION

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2019-04920 in Executive Session on 23 Jul 20:

, Panel Chair 
, Panel Member
, Panel Member

All members voted against correcting the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 22 Sep 19.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DP2SSR, dated 21 May 20.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 21 May 20.
Exhibit E:	Applicant Response, dated 5 Jun 20.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings, as required by AFI 36-2603, paragraph 4.11.9.